Civil Rights and
Public Policy
Chapter 5
TWO CENTURIES OF STRUGGLE
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Most Americans favor equality in the abstract, but the
concrete struggle for equal rights has been our nation's most
bitter battle.
The real meaning of equality is both elusive and divisive.
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Civil rights are the policies that extend basic rights to
groups historically subject to discrimination.
The modem civil rights movement began in 1965 when Rosa
Parks refused to give up her seat in the front of a Montgomery,
Alabama, bus (where only whites were permitted to sit); the
boycott that followed her arrest is often seen as the beginning
of the African American civil rights movement.
Today's debates over inequality in America center on racial
discrimination, gender discrimination, and factors such as
discrimination based on age, disability, and sexual
preference.
With your shoulder partner: Which group suffers the most discrimination today? Examples?
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Conceptions of equality.
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Philosophically, the struggle for equality involves defining
the term; constitutionally, it involves interpreting laws;
politically, it often involves power.
American society does not emphasize equal results or
equal rewards-a belief in equal rights has often led to a
belief in equality of opportunity.
Early American views of equality.
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Jefferson's statement in the Declaration of Independence
that "all men are created equal" did not mean that he
thought there were no differences among people.
Few colonists were eager to defend slavery, and the
delegates to the Constitutional Convention did their best to
avoid facing the divergence between slavery and the
principles of the Declaration of Independence.
Women's rights received even less attention than did
slavery at the Convention.
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The Constitution and inequality.
 The delegates to the Constitutional Convention came up with a plan for
government, not guarantees of individual rights:
the word equality does
not even appear in the original Constitution.
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Even the Bill of Rights does not directly mention equality, but it does have
implications for the principle of equality since it does not limit the scope of its
guarantees to any specified groups..
 The only place in which the idea of equality clearly appears in the
Constitution is in the Fourteenth Amendment, which prohibits the states from
denying "equal protection of the laws" to any person.
What does equal protection of the laws mean?
 It was not until the mid-twentieth century that the Fourteenth Amendment
was used to assure rights for disadvantaged groups.
 Over the last one hundred years, the equal protection clause has become
the vehicle for more expansive constitutional interpretations.
The Court has developed three levels of judicial scrutiny (or classifications)
 Most classifications that are reasonable (that bear a rational relationship to
some legitimate governmental purpose) are constitutional.
 Racial and ethnic classifications are inherently suspect: they are presumed
to be invalid and are upheld only if they serve a "compelling public interest"
that cannot be accomplished in some other way.
 Classifications based on gender fit somewhere between reasonable and
inherently suspect: gender classifications must bear a substantial
relationship to an important legislative purpose (and is sometimes called
"medium scrutiny').
RACE, THE CONSTITUTION, AND
PUBLIC POLICY
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The civil rights laws that African American groups pushed for
have also benefited members of other minority groups.
Three eras define African Americans' struggle for equality in
America : 1.the era of slavery, from the beginnings of
colonization until the end of the Civil War 2. the era of
reconstruction and resegregation, from the end of the Civil War
until 1954 and 3. the era of civil rights from 1954 to the present
The era of slavery (1600s-1865).
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During the slavery era any public policy of the slaver states or the
federal govt had to accommodate the property interests of slave
owners
The most infamous statement in defense of slavery occurred in Dred
Scott v. Sandford (I857), in which Chief Justice Taney declared that an
African-American man was “chattel” and had no rights under a white
man’s govt; Congress had no power to ban slavery in the western
territories (thereby effectively invalidating the Missouri Compromise)
The Union victory in the Civil War and the ratification of the Thirteenth
Amendment ended slavery.
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The era of reconstruction and resegregation (end of the Civil War
to 1954)
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After the Civil War ended, Congress imposed strict conditions on the former
Confederate States before they could be readmitted to the Union.
As soon as they regained power white Southerners imposed a code of "Jim
Crow laws," or Black Codes (segregation laws that required AfricanAmericans to use separate public facilities and school systems); although
not required by law, segregation was also common practice in the North.
In the era of segregation, housing, schools, and jobs were--in one way or
another--classified as "white" or "colored."
The Supreme Court provided constitutional justification for
segregation in Plessy v. Ferguson (1896) when it held that
segregation in public facilities was not unconstitutional as long as the
facilities were substantially equal (a principle that was commonly referred
to as the "separate but equal" doctrine, though subsequent decisions paid
more attention to the "separate" than to the "equal" part).
Some limited progress was made in the first half of the twentieth century,
including executive orders (such as desegregation of the armed forces)
and court decisions (including Guinn v. United States, 1915, which
banned the grandfather clause in voting; Smith v. Allwright, 1944,
overturning all-white primaries; and Sweatt v. Painter, I 950, which held
that blacks are entitled to the same professional and graduate
education as students of other races).
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The era of civil rights (1954-present)
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During the period leading up to the civil rights movement, segregation was
legally required in the South (de jure) and sanctioned in the North (de facto).
Brown v. Board of Education (1954) marks the beginning of the era of civil rights.
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The Supreme Court used Brown to set aside its earlier precedent of Plessy v. Ferguson (1896).
In a landmark decision, the Court held that school segregation was inherently unconstitutional
because it violated the Fourteenth Amendment's guarantee of equal protection.
In 1955, the Court ordered lower courts to proceed with "all deliberate speed" to desegregate
public schools; however, desegregation moved very slowly until the passage of the Civil Rights Act of
1964 which denied federal funds to segregated schools.
The civil rights movement organized both African Americans and whites to end the policies
and practices of segregation.
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The movement began in 1955 when Rosa Parks refused to give up her seat in the front of a
Montgomery, Alabama, bus (where only whites were allowed to sit); her arrest led to a boycott led by
Rev. Martin Luther King, Jr.
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Sit-ins, marches and civil disobedience were key strategies of the civil rights movement, which
sought to establish legal opportunities in the political and economic sectors and to bring an end to
policies that put up barriers against people because of race.
The 1950s and 1960s saw a marked increase in public protections designed to foster racial equality.
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The Civil Rights Act of 1964 made racial discrimination illegal in hotels, motels, restaurants, and other
places of public accommodation it also forbade many forms of job discrimination, and Congress
cut off federal aid to schools that remained segregated.
Desegregation proceeded slowly in the South and .some federal judges ordered the busing of students to
achieve racially balanced schools (upheld by the Supreme Court in Swann v Charlotte-Mecklenberg
County Schools, 1971).
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Getting and using the right to vote.
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The early Republic limited suffrage (the legal right to vote)
primarily to property-holding white males.
The Fifteenth Amendment (1870) guaranteed African
Americans the right to vote, but full implementation did not
occur for another century.
States used various methods to circumvent the Fifteenth
Amendment:
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Grandfather clause - exempted persons whose grandfathers
were eligible to vote in 1860 from taking literacy tests in order to
vote; the exemption obviously did not apply to grandchildren of
slaves (declared unconstitutional in Guinn v. U.S., 1915).
Poll tax - small taxes levied on the right to vote; the taxes often fell
due at a time of year when poor sharecroppers had the least
amount of cash available.
White primary - permitted political parties in the heavily
Democratic south to exclude blacks from primary elections on
the pretext that political parties (and primaries) were private and
not public institutions this device deprived blacks of a voice in the
Primaries, where the real contest occurred (declared
unconstitutional in Smith v. Allwright, 1944).
Many .areas in the South employed voter registration tests
(sometimes called voter literacy tests) in a discriminatory
manner; some of the tests checked for an understanding of the
Constitution.
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The civil rights movement put suffrage high on its political
agenda, and many barriers to African-American voting fell
during the 1960s.
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Poll taxes in federal elections were prohibited by the Twenty
Fourth Amendment (1964); poll taxes in state elections were
Invalidated two years later in Harper v. Virginia State Board of
Elections.
The Voting Rights Act of 1965 prohibited any government from
using voting procedures that denied a person the vote on the
basis of race or color.
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Federal election registrars were sent to areas that had long histories of
discrimination, and many African-Americans were registered in southern
states as a direct result.
The Voting Rights Act produced a major increase in the number of
African-Americans registered to vote in the southern states, and in the
number of African-Americans who held public office.
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The civil rights laws that African-American groups pushed for have
benefited members of other minority groups such as American Indians;
Asians, and Hispanics. The United States is heading toward a minority
majority status, when minority groups will outnumber Caucasians of
European descent.
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Native Americans:
 The oldest minority group in America, but they were not made U.S. citizens until
1924.
 The Indian Claims Act was enacted in 1946 to settle financial disputes arising
from land taken from the Indians.
Hispanic Americans:
 the largest minority group
Asian Americans:
 The 2nd fastest growing minority group.
 During World War II, the U.S. government rounded up more than 100,000
Americans of Japanese descent and placed them in internment
encampments known as "war relocation centers."
 The Supreme Court upheld the internment as constitutional in Korematsu v. United
States (1944), but Congress later provided benefits for the former internees
(which still have not been distributed).
WOMEN, THE CONSTITUTION,
AND PUBLIC POLICY
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The struggle for women's equality has emphasized legislation
over litigation.
The battle for the vote.
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The first women's rights activists were products of the abolition
movement.
The legal doctrine of coverture deprived married women of any
identity separate from that of their husbands.
Lucretia Mott and Elizabeth Cady Stanton organized a meeting at
Seneca Falls, New York, to discuss women's rights.
The Seneca Falls Declaration of Sentiments and Resolutions (signed on
July 19, 1848) was the beginning of the movement that would culminate
in the ratification of the Nineteenth Amendment (1920), which gave
women the right to vote.
The "doldrums": 1920-1960.
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The feminist movement seemed to lose momentum after winning the
vote, possibly because the vote was about the only goal on which all
feminists agreed.
Alice Paul, the author of the Equal Rights Amendment (ERA), claimed
that the real result of protectionist law was to perpetuate sexual
inequality; but most people in the 1920s saw the ERA as a threat to the
family.
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The second feminist wave.
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The civil rights movement of the 1950s and 1960s attracted many
women activists.
Groups like the National Organization for Women (NOW) and the
National Women s Political Caucus were organized in the 1960s &
1970s
Judicial development.
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Before the advent of the contemporary feminist movement
the Supreme Court upheld virtually all cases of sex based discrimination
In Reed v Reed, the Court rules that any “arbitrary” sex based classification
violated the equal protection clause of the 14th Amendment (marking the
first time the Court applied the 14th to a case involving classification by sex)
In Craig v. Boren (1976), the Court established a "medium scrutiny"
standard, under which sex discrimination would be presumed to be neither
valid nor invalid.
The Supreme Court has now struck down many laws and rules for
discriminating on the basis of gender; some of the litigants have been men
seeking equality with women in their treatment under the law.
The ERA was revived when Congress passed it in 1972 and granted
a three-year extension six years later; the ERA fell three states short
of ratification, but losing the ERA battle has stimulated vigorous
feminist activity.
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Women in the Workplace.
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As conditions have changed, public opinion and public policy
demands have also changed.
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Some important progress was made through congressional legislation:
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The traditional family role of father at work/mother at home is becoming
a thing of the past.
The civilian labor force includes 64 million women (74 million males).
There are 30 million female-headed households; about two-thirds of
American mothers who have children below school age are in the labor
force.
The Civil Rights Act of 1964 banned sex discrimination in
employment.
In 1972, the Equal Employment Opportunity Commission (EEOC) was
given the power to sue employers suspected of illegal
discrimination.
Title IX of the Education Act of 1972 forbade sex discrimination in
federally subsidized education programs, including athletics.
Three of the most controversial issues that legislators will
continue to face are wage discrimination, the role of women in the
military, and sexual harassment.
The Supreme Court has frequently ruled against gender discrimination
in employment and business activity.
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Wage discrimination and comparable worth.
 The U.S. Supreme Court has remained silent so far on the issue of "comparable worth,"
which refers to the fact that traditional women's jobs often pay much less than men's
jobs that demand comparable skill.
 Median annual earnings for full-time women workers are only about two-thirds those of
men.
Women in the military.
 Women have served in every branch of the armed services since World War II (originally in
separate units, but now part of the regular service).
 Women comprise 11 percent of the banned forces, and compete directly with men for
promotion.
 There are still two important differences between the treatment of men and women in
military service:
 Only men must register for the draft when they turn age eighteen (upheld in Rostkerv.
Goldberg, 1981).
 Statutes and regulations prohibit women from serving in combat.
Sexual harassment can occur anywhere, but may be especially prevalent in male-dominated
occupations such as the military. Sexual harassment violates federal policies against sexual
discrimination in the workplace (although it was not a violation of federal policy when Anita Hill
worked for Clarence Thomas).
 In Harris v. Forklift Systems (1993), the Supreme Court held that no single factor is required to
win a sexual harassment case under Title VII of the 1964 Civil Rights Act. The law is violated
when the workplace environment "would reasonably be perceived, and is perceived, as
hostile or abusive."
 In 1996 and 1997, a number of army officers and noncommissioned officers had their careers
ended, and some went to prison, for sexual harassment of female soldiers in training
situations.
 In Faragher v.City of Boca Raton (1998), the Supreme Court stated that employers can be
held liable for even those harassing acts of supervisory employees that violate clear policies
and of which top management has no knowledge.
NEWLY ACTIVE GROUPS UNDER
THE CIVIL RIGHTS UMBRELLA
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New activist groups began to realize that policies that were
enacted to protect racial minorities and women can also be
applied to other groups such as aging Americans, the disabled
and homosexuals.
Civil rights and the graying of America.
 People in their eighties comprise the fastest growing age
group in this country
 Since 1967, Congress has passed several laws that ban
various types of age discrimination.
It is not clear what the fate of the gray liberation movement will
be as its members approach the status of minority majority
Are the young a disadvantaged group, too?
 Young people have also suffered from inferior treatment
under the law.
 There are obvious difficulties in organizing a "children's
rights movement," but there have been instances of young
people who were successful in asserting their rights (illustrated
by Walter Polovchak, who refused to return to the Ukraine with
his parents, and a 12-year old boy in Florida who "divorced"
his family so he could be adopted by foster parents).
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Civil rights and people with disabilities.
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Americans with disabilities have suffered from both direct and indirect
discrimination.
The first rehabilitation laws were passed in the late 1920s; the Rehabilitation Act of
1973 (twice vetoed by President Nixon as "too costly") added disabled people to the
list of Americans protected from discrimination.
The Americans with Disabilities Act of 1990 requires employers and public facilities to
provide "reasonable accommodations," and prohibits employment discrimination
against the disabled.
Questions have been raised over whether AIDS victims are handicapped
and thus entitled to protection. So far, no case dealing with AIDS victims has reached
the Supreme Court.
Gay and lesbian rights.
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Gay (or homosexual) activists may face the toughest battle for equality.
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Homosexual activity is illegal in some states, and homosexuals often face prejudice in
hiring, education, access to public accommodations, and housing.
There are no positive stereotypes commonly associated with homosexuality.
Homophobia (fear and hatred of homosexuals) has many causes, and homosexuals
are often seen as safe targets for public hostility.
A substantial percentage of the American public express opposition to homosexuals
entering many common occupations.
In 1993, President Clinton announced a new policy that barred the Pentagon from
asking recruits or service personnel to disclose their sexual orientation. Popularly known as
the "don't ask, don't tell" policy, it also reaffirmed the Defense Department's strict
prohibition against homosexual conduct.
Despite some setbacks, gay activists have won some important victories.
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Seven states and more than one-hundred communities have passed laws protecting
homosexuals against some forms of discrimination.
Most colleges and universities now have gay rights organizations on campus.
Affirmative Action
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The interests of women and minorities have converged on the issue of affirmative
action (policies requiring special efforts on be a disadvantaged groups).
 Affirmative action involves efforts to bring about increased employment,
promotion, or admission for members of such groups..
 The goal of affirmative action is to move beyond equal opportunity toward equal
results.
 The federal government has mandated that all state and local governmentstogether with each institution receiving aid from or
contracting with the
federal government-adopt an affirmative action program. .
Some groups have claimed that affirmative action programs constitute "reverse
discrimination."
 In Regents o/ .the University of California. v. Bakke (1?78), the Court rejected a
plan at the University of California at Davis that set aside 16 of a total of 100 places
in the entering medical school class for "disadvantaged groups."
 The Court said a university could not set aside a quota of spots for particular
groups.
 However, the Court said that a university could adopt an "admissions
program where race or ethnic background is simply one element in the
selection process."
 The following year, the Court ruled that a voluntary union and managementsponsored program was not discriminatory because the Kaiser Aluminum
Company's special training program was intended to rectify years of past
employment discrimination at Kaiser (United Steelworkers of America, AFL-CI0 v.
Weber, 1979).
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In other cases, the Court has ruled that public employers
may use an affirmative action plans to counter underrepresentation of women and minorities, but the Court has
also ruled that affirmative action does not exempt recently
hired minorities from traditional work rules specifying the
“last hired, first fired" order of layoffs.
Opposition to affirmative action policies.
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Surveys find that most Americans oppose affirmative
action programs, even though Americans in general
support nondiscrimination in employment and education.
Opposition is especially strong when people view affirmative
action as reverse discrimination where less qualified individuals
get hired or admitted to educational or training programs.
In 1996, California voters passed Proposition 209, which
banned state affirmative action programs based on race,
ethnicity, or gender in public hiring, contracting, and
educational admissions. Ultimately the U.S. Supreme Court will
decide the issue.
UNDERSTANDING CIVIL RIGHTS
AND THE CONSTITUTION
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Civil rights and democracy.
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Democracy is often in conflict with itself: both equality and individual
liberty are important democratic principles, but they may conflict with
each other.
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Equality tends to favor majority rule, but equality threatens individual liberty in
situations where the majority wants to deprive the minority of its rights.
Majority rule is not the only threat to liberty: minorities have suppressed majorities
as well as other minorities.
Even when they lacked the power of the vote, both African
Americans and women made many gains by using other rights (such as the
First Amendment freedoms) to fight for equality.
Civil rights and the scope of government.
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Civil rights laws increase the scope and power of government.
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These laws place both restrictions and obligations on individuals and institutionsthey tell individuals and institutions that there are things they must do and other
things they cannot do.
Libertarians and those conservatives who want to reduce the size of government
are uneasy with these laws (and sometimes hostile to them).
Civil rights is an area in which increased government activity in
protecting basic rights can lead to greater checks on the government by
those who benefit from such protections.